Labour Court Database __________________________________________________________________________________ File Number: CD91627 Case Number: AD92201 Section / Act: S13(9) Parties: WATERFORD FOODS PLC - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by both parties against Rights Commissioner's recommendation No. S.T. 348/91 concerning the redeployment of a worker.
Recommendation:
5. Having considered the submissions made it is quite clear to
the Court that the worker concerned had in the past been in
receipt of a 'composite' rate which equated to the Laboratory
Technician's rate but which entailed the obligation to carry out
extra duties when required. In these circumstances the Court is
of the opinion that the Rights Commissioner's Recommendation which
the Court understands to mean the Laboratory Assistants rate -
should stand and lump sum compensation in accord with the Murphy
formula for the balance is correct in these circumstances and
should stand, while noting the finding that the worker is clearly
not a qualified Laboratory Technician. The Court so decides.
Division: Mr O'Connell Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD91627 APPEAL DECISION NO. AD20192
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: WATERFORD FOODS PLC
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by both parties against Rights Commissioner's
recommendation No. S.T. 348/91 concerning the redeployment of a
worker.
BACKGROUND:
2. 1. The Company is an international food company with
operations in Ireland, the U.K. and the U.S.A. The worker
works at Glenmore Creamery in South Kilkenny, a branch of
Wateford Foods. The Creamery has 4 branches and employs 22
people. The worker was employed as a laboratory assistant in
the milk intake section until November 1991, when it was
closed down on completion of a rationalisation programme.
2. The worker was in receipt of £255.24, the rate for the job
as agreed between the worker and the manager of the Creamery.
The worker was transferred to the grade 4 position of branch
store/yardman in the trading division in November, 1991. The
rate of pay for this position is £167.53.
3. The Company claim that the worker's rate was that of
laboratory assistant (£201.93) with a consideration for an
agreed amount of overtime of £53.31. The worker's claim is
that he was in receipt of the laboratory technician rate and
that he should retain this rate in his new position. The
dispute was referred to the Rights Commissioner's service of
the Labour Relations Commission. A Rights Commissioner's
investigation was held on 18th September, 1991 and the
findings and recommendation as set out below issued on 17th
October, 1991.
"FINDINGS
1. The single claimant is clearly not a qualified
Laboratory Technician. He has not secured the necessary
qualifications from a competent educational
establishment. In these circumstances he cannot be
fairly compared to Lab. Techs. elsewhere in the Milk and
Dairy Industry.
2. He is however in my view entitled to hold his
established rate of Lab Asst. and this would in my view
accord with normal practice in the industry. He is also
entitled under agreement to compensation for any losses
in earnings which may ensue.
*RECOMMENDATION
Lab. Asst. Case. I recommendation that he receives the
agreed rate for this function. I further recommend that
he receives compensation for the difference between the
two rates in accordance with the Murphy formula of 50
over 52 times the loss. Further increases should be
based on the rate applicable for the function or grade
work which he is involved in from time to time".
4. The Rights Commissioner's recommendation was appealed by
both the Company and the Union under Section 13(9) of the
Industrial Relations Act, 1969 by letters dated 25th November,
1991 and 21st November, 1991. The Labour Court heard the
appeal in Waterford on 26th August, 1992 (the earliest date
suitable to both parties).
UNION'S ARGUMENTS:
3. 1. In 1988 as part of a rationalisation programme it was
agreed that the worker would be paid the laboratory
technician's rate. The worker has no objection to being
redeployed in the circumstances, provided he retains his
current rate of pay and that his new job specification is
discussed at local level.
2. The Rights Commissioner's recommendation stated that the
worker had not secured the necessary qualifications from a
competent educational establishment. The Union has
established that there are 19 laboratory technicians employed
in Dungarvan, one at Clonroche and two at Inch Creameries with
the same qualifications as the worker.
3. The effect of accepting the recommendation would be a
reduction in the worker's wages of £53 per week with
consequent reductions in pension and social welfare
entitlements. Clause 6.2 of the 1988 rationalisation
programme states that in the event of bulk milk drivers being
redeployed they would retain their rate of pay even if working
at a lower grade. The worker's pay arrangements arise from
the 1988 agreement and he should benefit from it.
COMPANY'S ARGUMENTS:
4. 1. The worker's composite rate of pay contains an agreed
element of overtime which he received whether he had to do
overtime or not. The basic rate for the position of
laboratory assistant is £201.93. The rate is not in any way
related to the job which the worker is now filling and which
carries a rate of £167.33.
2. The position of laboratory assistant no longer exists at
the Creamery and the worker should receive the rate for the
function he is now carrying out. The Company is prepared to
buy out the difference between his old composite rate and his
new rate in accordance with the "Murphy Formula" of 50/52 of
actual loss.
3. Workers employed at the same job at different rates of pay
create an anomaly which may cause resentment and poor morale.
The Company has had similar difficulties in the past and is
anxious that for the future, workers will receive the rate for
the job. The other workers referred to by the Union do not
carry out the same duties as the worker (details supplied).
DECISION:
5. Having considered the submissions made it is quite clear to
the Court that the worker concerned had in the past been in
receipt of a 'composite' rate which equated to the Laboratory
Technician's rate but which entailed the obligation to carry out
extra duties when required. In these circumstances the Court is
of the opinion that the Rights Commissioner's Recommendation which
the Court understands to mean the Laboratory Assistants rate -
should stand and lump sum compensation in accord with the Murphy
formula for the balance is correct in these circumstances and
should stand, while oting the finding that the worker is clearly
not a qualified Laboratory Technician. The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
--------------
30th September, 1992. Deputy Chairman
J.F./J.C.